From the Texas Education Agency

 

General Questions

1. What is a Special Education Due Process Hearing?

A due process hearing is held in the same way as a trial at the courthouse. The parties present evidence to the Hearing Officer who acts as both judge and jury. The due process hearing is independent of the Texas Education Agency (TEA) and the TEA may not influence the Hearing Officer’s decision in any way.

2. What is a Special Education Hearing Officer?

A Special Education Due Process Hearing Officer (Hearing Officer) is in charge of the hearing, just like a judge is in charge of a trial. The Hearing Officer does not take the side of either party. The Hearing Officer is independent of the Texas Education Agency. The Hearing Officer runs the hearing, listens to the evidence and arguments of the parties, and writes a Final Decision and Order. The Hearing Officer also may have meetings before the hearing, give written orders, and generally control the hearing.

3. Do I need an attorney to go to a due process hearing?

No. If you are a party in a due process hearing involving your student’s education, you do not have to have an attorney. You may represent yourself and your student. You do not have the right to have an attorney appointed for you. You may hire an attorney to represent you, but you must pay for the attorney yourself. Hearing Officers do not have the authority to award attorney’s fees to parents if they prevail at a hearing. But if parents do prevail, district judges in state and federal court may award fees based upon the Hearing Officer’s decision. The school district is usually represented by an attorney. If you choose to represent yourself, you will need to know the law and rules that apply to your case. The Hearing Officer cannot give you legal advice or help you present your case. You will also be expected to follow TEA’s hearing rules, which can be found at http://www.tea.state.tx.us/rules/tac/chapter089/ch089aa.html.

4. What laws control the due process hearings?

• The Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), 20 United States Code Section 1400 et seq.
  
  
• The federal regulations at 34 Code of Federal Regulations Part 300.
  
  
• The procedures found in the Administrative Procedures Act, Texas Government Code, Section 2001.001 et seq.
  
  
• The Commissioner’s and State Board of Education Rules for Special Education Services found at 19 Texas Administrative Code, §89.1001-89.1191.
  
  
• The Texas Rules of Civil Procedure.
  
  
• The Texas Rules of Evidence, unless they are affected or changed by the federal regulations found in 34 Code of Federal Regulations Section 300.307-300.514, 300.52, or 300.528 or the Commissioner’s rules found in 19 Texas Administrative Code §89.1151-89.1191.

5. How long does it take from the time that I request a due process hearing until the Hearing Officer makes a final decision?

Usually, the Hearing Officer will contact you within 5 business days of the date that you asked for a due process hearing. The Hearing Officer will notify the parties of the pre-hearing conference and the hearing schedules soon after the request for due process hearing is received by the Hearing Officer. There is a 30 day resolution period before the 45 day timeline for issuing a final decision begins. A resolution meeting for the parties may be held within fifteen days from the receipt of the request for hearing. The parties have a total of thirty days to seek a resolution of the dispute through the resolution process, informal settlement discussion or mediation. The 45 day timeline in your case may be extended if you and/or the district request an extension, and the request is granted by the Hearing Officer.

6. What if I need an interpreter?

If you need a language interpreter or an interpreter for the hearing- or sight-impaired, you must tell the Special Education Hearing Officer before the hearing or meeting where the interpreter will be needed. The Hearing Officer will find and pay for the interpreter. When you ask for an interpreter, be sure to say what kind of interpreter you need.

7. May I watch a due process hearing before I go to my hearing?

Not usually. Due process hearings are confidential. You may only watch a hearing with the permission of the parents of the student who is the subject of the hearing.

Before the Due Process Hearing

1. How will I know when my case has been assigned to a Special Education Hearing Officer?

You will receive a written “Notice of Filing of Request for a Due Process Hearing” from TEA which notifies you that your case has been assigned to a Hearing Officer. This notice will include the Hearing Officer’s name, address and phone number. The Hearing Officer will contact the parties to discuss procedures and scheduling the case for a pre-hearing conference. (A pre-hearing conference is a discussion on the telephone with both parties about the issues for hearing and the arrangements for the hearing.)

2. What is a Resolution Session?

Once a district receives notice that a due process hearing has been filed with TEA, the district has 15 days to have a resolution session meeting with the parents. The resolution session must include someone from the district who has the power to make a decision for the district. The district’s lawyer is not allowed to come to the resolution session unless the parent brings a lawyer. At the meeting you may talk about your reasons for filing a due process hearing. The district has an opportunity to resolve or settle the issues. If the district has not resolved the issues within 30 days after it has received the notice that the due process hearing request was filed with TEA, then the hearing moves forward.

3. May I waive the Resolution Session?

You and the district may agree not to hold the resolution meeting. This agreement must be in writing. You and the district may also agree to use mediation instead of holding the resolution session meeting.

4. What if I do not attend the Resolution Session meeting?

It is important to know that if you refuse to go to the resolution session, then you have not met the legal requirements to get a due process hearing, and the case may be dismissed.

5. What if the case is settled in the Resolution Session meeting?

If the case is resolved by you and the district at the resolution meeting, then both parties sign a settlement agreement. A copy of the settlement agreement is sent to the Hearing Officer who will then dismiss the case. The settlement agreement is a legal document and it can be enforced by a court, that is, a state or federal district court may order the parties to do what is provided in the settlement agreement. You and the district each have 3 business days after the settlement agreement is signed to decide to cancel the agreement. If the agreement is cancelled, then the due process hearing moves forward.

6. Who do I send my correspondence and requests to once a Hearing Officer is assigned?

You should send all written communications to the Hearing Officer and to the representative of the school district or charter school (usually an attorney). Also, the rules prohibit the Hearing Officer from talking to either you or the district representative about the case without the other side being given notice.

7. What should I do if I cannot go to the hearing on the day scheduled?

You or your attorney should file a written motion for continuance with the Hearing Officer. A motion for continuance is a request for the due process hearing to be scheduled at another time. The motion must say why you cannot come to the hearing on the day that it was scheduled and it must ask for the hearing to be scheduled on another date. You must send a copy to the school district. The other party has a right to respond to your motion. The Hearing Officer will rule on your motion in a written order that will be sent to you or your attorney. The Hearing Officer can grant or deny your motion.

8. Where should I send my motion for continuance?

Your motion should be sent to the Hearing Officer. A copy of the motion must also be sent to the other party. A copy of any document or motion you file must be sent to the Hearing Officer and also to the other party in your case.

9. May I ask the school district for information that they have about my case?

Yes. In most cases, the rules allow a party to get ready for a due process hearing by “discovering” information from the other party. You have the right to ask the district or charter school for information that they may have about your case. You may ask at any time after your case is assigned to a Hearing Officer, but you must ask for everything you want before the due process hearing begins. The district may charge a fee for requested copies. This process is called “discovery” and TEA’s hearing rules set out the way that this process is accomplished. These rules are located at 19 TEX. ADMIN. CODE §89.1180. The Hearing Officer can enter orders about discovery.

10. I want to make sure a witness comes to my due process hearing. How can I do that?

In order to make a witness come to the due process hearing, a “subpoena” must be issued. A subpoena is an order that says that a witness has to come to the hearing and testify or bring papers or documents or other information to the hearing. You should ask for a subpoena in writing from the Hearing Officer as long before the hearing as you possibly can. You may also ask a witness to come to the hearing. But the witness does not have to come to the hearing just because you ask them to come. Witnesses who are employed by the district can usually come to the hearing if they still work for the district at the time of the due process hearing.

11. How should I get ready for the due process hearing?

Know the facts that you want to talk about at the due process hearing. Know as much as you can about the papers that you think the Hearing Officer should look at for evidence to prove your case, and make sure to have copies for the hearing. If you have an attorney, the attorney should help you prepare. If you do not have an attorney, read the law and rules so that you can meet deadlines and be as prepared as you can. The rules can be found online at http://www.tea.state.tx.us/special.ed/rules. Remember that a list of witnesses that you may want to come to the hearing and copies of any papers that you want the Hearing Officer to look at for evidence for your case must be given to the Hearing Officer and to the other party at least five business days before the day of the hearing.

12. May I call the Hearing Officer to talk about my case?

You may call the Hearing Officer to talk about the schedule or about the way you have to do something. You may not talk to the Hearing Officer about the subject of your case without the district being a part of the conversation.

13. Where will my due process hearing be held?

Most due process hearings are held at the school district.

14. May I ask for my due process hearing to be held somewhere other than at the school district?

Yes. You may ask the Hearing Officer if the due process hearing can be held somewhere other than the district. The Hearing Officer may say yes or no. If the answer is yes, the Hearing Officer will take care of everything that needs to be done to have the due process hearing in the new location.

The Due Process Hearing

1. What happens at a due process hearing?

The people that come to the due process hearing are the Hearing Officer, the parties and their attorneys, the witnesses, and a court reporter. Due process hearings can last anywhere from a few minutes to several days.

Most due process hearings will have:

Opening statement - Each party may tell the Hearing Officer their side of the case. The party with the “burden of proof” will be asked to make its opening statement first and the other party will follow. You do not have to make an opening statement, but it may help the Hearing Officer understand your side of the story. These opening statements are not evidence and cannot be used to prove facts in the case.

Presentation of evidence - In most cases, the party requesting action has the “burden of proof.” If you have the burden of proof you must show by evidence (testimony, documents, etc.) that you are entitled to get what you are asking for. Usually, the party requesting the action presents its evidence first.

Witnesses - Each party may have witnesses come to the due process hearing. The witnesses are placed under oath. Witnesses first answer questions from the party who called them. Then they may be cross-examined by the other party. Sometimes witnesses may have to wait outside the hearing room until they are called in to testify. Persons with specialized training or knowledge may be considered expert witnesses by the Hearing Officer. Districts frequently call expert witnesses in making a presentation of their case. You may cross-examine the experts and you may want to call experts of your own..

Exhibits - If a party wants the Hearing Officer to look at particular papers that they have they must “offer the documents into evidence.” Those documents will be marked as exhibits. The party must provide a copy for the Hearing Officer, a copy for the other party, and they must keep a copy. Sometimes the person who prepared the document may need to testify about it before it can be admitted as evidence. If the person who wrote the document is not at the hearing, the document may not be admitted into evidence and the Hearing Officer will never see it.

Objections - Any party may “object” to questions, testimony, or exhibits that he does not think the Hearing Officer should use as evidence to judge the case. The party must let the Hearing Officer know that he has an objection. An objection must have a legal reason. The Hearing Officer may “sustain” the objection. If an objection is sustained, the testimony or exhibit that was objected to will not be used as evidence to judge the case. The Hearing Officer may “overrule” the objection. If the objection is overruled, the Hearing Officer may use the testimony or exhibit when he is making the final decision in the case.

Closing statement – At the end of the due process hearing each party may say what he thinks the evidence shows. Each party may say why the Hearing Officer should make a final decision in that party’s favor. The closing statement is not evidence. It may be written or oral. If it is written, it may include any post hearing briefing ordered by the Hearing Officer.

2. What is the “burden of proof”?

If you are the party asking for the hearing, you must prove that it is more likely than not that you are right and that you should get what you are requesting. The party that must prove something in order to win is the party that has the burden of proof. You may ask the Hearing Officer about the burden of proof and who has it at your prehearing conference

3. What happens if I don’t go to the due process hearing? What happens if I go to the due process hearing but I don’t participate?

If you are a party in a due process hearing and you don’t go to the hearing, the Hearing Officer may rule against you on every issue and you may lose your case. If you go to the due process hearing and don’t participate, the Hearing Officer may rule against you on every issue and you may lose your case.

4. May I bring a witness to the due process hearing?

Yes. You may bring one or more witnesses to testify and to help explain documents or your side of the story. The Hearing Officer may ask the parties to exchange the names of their witnesses and to give an idea about what each witness will say. This will be done before the hearing so the parties can be prepared.

5. May I bring documents (my papers and files) as evidence?

Yes. You should bring any papers or files that you think the Hearing Officer should look at when he makes a Final Decision about your case. Remember that you must have already given the documents to the other party at least five business days prior to the hearing. Also, you will want to bring an extra copy of the documents if you want a witness to look at the documents and testify about them.

6. What should I wear to the due process hearing?

There is no dress code for the due process hearing, but most people dress as if they were going to a business office.

7. What if I have an emergency at the last minute and can’t go to the due process hearing?

You must call the office of the Hearing Officer as soon as you can and explain your situation. You should also try to call the other party’s attorney.

8. How will the due process hearing be recorded?

The hearing will be recorded by a certified court reporter.

9. How do I get a copy of what was recorded?

The court reporter will provide you with a free copy of the transcript of the hearing. The transcript will be a written copy of everything that was said at the hearing. It is usually prepared within ten days or two weeks of the hearing.

10. Will the Hearing Officer make a decision on my case at the due process hearing?

In most cases the Hearing Officer will give you the Final Decision on or before the deadline for the decision. On rare occasions, the Hearing Officer may issue a ruling from the bench, but this usually does not happen. Sometimes the Hearing Officer rules that the parent wins on some issues but loses on other issues.

After the Due Process Hearing

1. Will the Hearing Officer ask for more information after the due process hearing?

The Hearing Officer may ask you to make a written closing argument on a question that came up in the due process hearing.

2. May I give the Hearing Officer more information after the due process hearing is over?

No, not unless the Hearing Officer asks for it.

3. Is there an appeal from the Hearing Officer’s Final Decision?

Yes. You have the right to appeal the decision to federal district court or to state district court. All appeals must be made no later than 90 days following the date of the Hearing Officer’s Final Decision. Most parents hire attorneys to present their appeals in state or federal district court. You do not have to hire an attorney to represent you in an appeal, but there are some courts that require this. You should check with the local rules of the court where you are filing your appeal.

Request For Special Education Due Process Hearing and Required Notice

The Individuals with Disabilities Education Act (IDEA) Amendments of 2004, Title 20, United States Code Section 1415(b)(8) requires that the Texas Education Agency develop a model form to assist parents in requesting a special education due process hearing and in providing the notice required by Section 1415(b)(7) of those amendments.

http://www.tea.state.tx.us/special.ed/pubs/doc/dpf-eng.doc**

Although TEA legal staff cannot provide legal advice or counsel, if you have general questions about due process hearings or mediations you may call 512-463-9720.